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2005-UP-114 - International Order fo Foresters v. Johnson

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


The International Order of Foresters, Plaintiffs,

v.

Louise Johnson, Carrie B. Johnson, and Cecil Yonce, Jr., Defendants,Of whom Carrie B. Johnson is,

Appellant,

and

Cecil Yonce, Jr., is,

Respondent.


Appeal From Edgefield County
Clifton Newman, Circuit Court Judge


Unpublished Opinion No. 2005-UP-114
Submitted February 1, 2005 – Filed February 14, 2005


AFFIRMED


Theo W. Mitchell, of Greenville, for Appellant.

Christian G. Spradley, of Saluda, for Respondent.

PER CURIAM:  Appellant Carrie Johnson argues that the circuit court erred in granting summary judgment to respondent because she never received notice of the hearing on the motion for summary judgment.  We affirm. [1]

FACTS

The International Order of Foresters filed an interpleader action against Louise Johnson, Appellant, and Respondent Cecil Yonce, Jr., to determine who should be awarded the proceeds of the life insurance policy of decedent Silvester Johnson, Appellant’s estranged spouse.  Appellant was not named as a beneficiary to the policy, and the decedent executed an assignment of the proceeds to Yonce.  Appellant alleged that Yonce committed fraud and used undue influence over the decedent.  In discovery, Appellant refused to admit that her husband signed the application for life insurance until she had consulted a handwriting expert.  She alleged in her answer to the request to admit that Yonce may have taken out policies of life insurance on other illiterate workers. 

Yonce filed a motion for summary judgment, and a hearing was scheduled for April 19, 2004.  Neither Appellant nor her attorney appeared at the hearing, but the circuit court made the specific finding that all the parties were properly served with notice according to the clerk’s office. [2]   Yonce presented the affidavit of the insurance agent to the effect that there was no undue influence and the decedent understood what he was signing.  The circuit court found Appellant had no interest in the matter because she was not named a beneficiary and because the decedent took the life insurance policy out on himself and then executed an assignment of the policy to Yonce.  The circuit court granted Yonce’s motion for summary judgment.   Nothing in the record indicates that Appellant filed a motion for reconsideration or a motion for relief from judgment.  This appeal follows. 

LAW/ANALYSIS

Appellant argues summary judgment was improper because neither she nor her attorney were ever given notice of the hearing as required by Rule 6(d), SCRCP. [3]   We disagree.

Summary judgment is appropriate where there is no genuine issue of material fact and it is clear the moving party is entitled to a judgment as a matter of law.  Rule 56(c), SCRCP.  If further inquiry into the facts is necessary to clarify application of the law, summary judgment is not appropriate.  Tupper v. Dorchester Co., 326 S.C. 318, 325, 487 S.E.2d 187, 191 (1997).  “Summary judgment should not be granted even when there is no dispute as to evidentiary facts if there is dispute as to the conclusion to be drawn from those facts.”  Id.  The evidence and the inferences therefrom must be viewed in a light most favorable to the non-moving party.  Id.

As Appellant correctly points out, notice of a hearing should be sent to all parties no later than ten days before the hearing.  Rule 6(d), SCRCP.  Yonce alleges in his brief that Appellant was served notice of the hearing on March 9, 2004, for the April 19, 2004, hearing.  There is no evidence in the record regarding when Appellant was served.  The circuit court, however, specifically found that notice of the hearing was properly given.  Despite the circuit court’s ruling on the notice issue, Appellant failed to complain before the circuit court in a Rule 59(e), SCRCP motion that she was not served notice of the hearing.  Because she failed to raise this argument before the circuit court, it is not preserved for appellate review.  Mize v. Blue Ridge Ry. Co., 219 S.C. 119, 129-30, 64 S.E.2d 253, 258 (1951) (holding that an issue not specifically raised by the appellant before the trial court was not preserved for appellate review, regardless of the fact that the trial judge addressed it). 

Further, even on the merits, we find the grant of summary judgment was proper.  Viewing the evidence in the light most favorable to Appellant, the life insurance policy on the decedent was executed by the decedent to insure his own life, decedent executed a valid assignment of the insurance proceeds to Yonce, and decedent never named Appellant a beneficiary of the policy.  There is no evidence in the record of any fraud on Yonce’s part, nor is there evidence that the decendent’s handwriting was forged on the life insurance policy or the assignment.  Accordingly, there is no evidence which supports Appellant’s claim to the proceeds.  Based on this evidence, we find the circuit court correctly granted summary judgment in favor of Yonce. 

Accordingly, the circuit court’s grant of summary judgment is

AFFIRMED.

ANDERSON, BEATTY, and SHORT, JJ., concur.


[1] Because oral argument would not aid the court in resolving the issues on appeal, we decide this case without oral argument pursuant to Rule 215, SCACR. 

[2] At the time of the summary judgment hearing, the Independent Order of Foresters had deposited the proceeds of the life insurance policy with the clerk of court and was no longer a party.  Also, Louise Johnson had failed to answer the complaint and was in default.  The only remaining parties to the action were Yonce and Appellant.  

[3]   Appellant raises two issues on appeal, both of which deal with whether it was appropriate for the circuit court to grant summary judgment where there was no notice given.  Accordingly, we treat the issues as one.